Ark. Code Ann. » Title 5 Chapter 68
Arkansas Code Annotated

Ark. Code Ann. § 5-68-302 (2020)

Definitions

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As used in this subchapter:

  1. “Advertising purposes” means a purpose of propagandizing in connection with the commercial sale of a product or type of product, the commercial offering of a service, or the commercial exhibition of an entertainment;
  2. “Hard-core sexual conduct” means a patently offensive act, exhibition, representation, depiction, or description of:
    1. An intrusion, however slight, actual or simulated, by any object, any part of an animal's body, or any part of a person's body into the genital or anal opening of any person's body; or
    2. Cunnilingus, fellatio, anilingus, bestiality, a lewd exhibition of genitals, or an excretory function, actual or simulated;
  3. “Live public show” means a public show in which a human being, an animal, or both appear bodily before a spectator or customer;
  4. “Obscene material” means a material that:
    1. Depicts or describes in a patently offensive manner sadomasochistic abuse, sexual conduct, or hard-core sexual conduct;
    2. Taken as a whole, appeals to the prurient interest of the average person, applying contemporary statewide standards; and
    3. Taken as a whole, lacks serious literary, artistic, political, or scientific value;
  5. “Obscene performance” means a play, motion picture, dance, show, or other presentation, whether pictured, animated, or live, performed before an audience and that in whole or in part depicts, or reveals, sexual conduct, hard-core sexual conduct, or sadomasochistic abuse, or that includes an explicit verbal description or a narrative account of sexual conduct or hard-core sexual conduct, and that:
    1. Depicts or describes in a patently offensive manner sadomasochistic abuse, sexual conduct, or hard-core sexual conduct;
    2. Taken as a whole, appeals to the prurient interest of the average person, applying contemporary statewide standards; and
    3. Taken as a whole, lacks serious literary, artistic, political, or scientific value;
  6. “Promote” means to produce, direct, perform in, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, or advertise, for consideration, or to offer or agree to do any of these things for consideration;
  7. “Public show” means any entertainment or exhibition advertised or in some other fashion held out to be accessible to the public or member of a club, regardless of whether an admission or other charge is levied or collected and regardless of whether a minor is admitted or excluded;
  8. “Sadomasochistic abuse” means flagellation, mutilation, or torture by or upon a person who is nude or clad in an undergarment or in revealing or bizarre costume, or the condition of being fettered, bound, or otherwise physically restrained on the part of a person so clothed, in a sexual context; and
  9. “Sexual conduct” means human masturbation or sexual intercourse.

History. Acts 1981 (1st Ex. Sess.), No. 28, § 2; A.S.A. 1947, § 41-3585.1.

Case Notes

Constitutionality.

This section is not void for vagueness. Dunlap v. State, 292 Ark. 51, 728 S.W.2d 155, cert. denied, 484 U.S. 852, 108 S. Ct. 155, 98 L. Ed. 2d 111 (1987).

Hard-Core Sexual Conduct.

Described activities held to meet the statutory definition of former law for “hard-core sexual conduct.” Century Theaters, Inc. v. State, 274 Ark. 484, 625 S.W.2d 511 (1981) (decision under prior law).

Obscene Material.

—In General.

Under former law, a judge's preliminary determination, prior to issuance of search warrant, that films of hard-core sexual conduct appealed to the prurient interest of the average person, applying contemporary statewide standards, and lacked serious literary, artistic, political, or scientific value was warranted where the judge knew that the place to be searched was a theater wherein movies were being shown to patrons in individual booths and where testimony of detectives describing the films indicated that the films would appeal to the prurient interests of the average person and that there was little probability of the films containing anything of value. Century Theaters, Inc. v. State, 274 Ark. 484, 625 S.W.2d 511 (1981) (decision under prior law).

This section does not use circular definition which ordinary persons cannot understand in defining “obscene material.” Dunlap v. State, 292 Ark. 51, 728 S.W.2d 155, cert. denied, 484 U.S. 852, 108 S. Ct. 155, 98 L. Ed. 2d 111 (1987).

Allegedly obscene material must be judged basis of a community standard encompassing all levels of sensitivity, of religiousness, and of economic, educational, and social standings. Dunlap v. State, 292 Ark. 51, 728 S.W.2d 155, cert. denied, 484 U.S. 852, 108 S. Ct. 155, 98 L. Ed. 2d 111 (1987).

Obscene material is that which, taken as a whole and applying contemporary statewide standards, attempts to activate prurient interest; the average person is quite capable of making that determination, and whether or not the material is successful in doing so is beside the point. Dunlap v. State, 292 Ark. 51, 728 S.W.2d 155, cert. denied, 484 U.S. 852, 108 S. Ct. 155, 98 L. Ed. 2d 111 (1987).

Evidence of pandering to prurient interests in the creation, promotion, or dissemination of the material is relevant in determining whether the material is obscene. Oglesby v. State, 299 Ark. 403, 773 S.W.2d 443 (1989).

—“Appeals.”

Legislature intended for the word “appeals” in subdivision (4)(B) to mean (1) an earnest or urgent request, entreaty, or supplication; (2) a resort or application to some higher authority, as for sanction, corroboration, or decision; (3) the power of attracting or of arousing interest. Dunlap v. State, 292 Ark. 51, 728 S.W.2d 155, cert. denied, 484 U.S. 852, 108 S. Ct. 155, 98 L. Ed. 2d 111 (1987).

—Statewide Standards.

Survey of several establishments selling obscene materials in state's most urban area would not be representative of a statewide standard, as is required by subdivision (4)(B). Dunlap v. State, 292 Ark. 51, 728 S.W.2d 155, cert. denied, 484 U.S. 852, 108 S. Ct. 155, 98 L. Ed. 2d 111 (1987).

Cited: 4000 Asher, Inc. v. State, 290 Ark. 8, 716 S.W.2d 190 (1986); Dunlap v. State, 303 Ark. 222, 795 S.W.2d 920 (1990).

Notes of Decisions
Cited in 2 cases, 1989–1990 · leading case: Dunlap v. State, 795 S.W.2d 920 (Ark. 1990).
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Dunlap v. State, 795 S.W.2d 920 (Ark. 1990). · cites it 2× “Ark. Code Ann. § 5-68-302 (4) (1987). In one of his points on appeal, the appellant argues that our Obscenity Law is unconstitutional under the first and fourteenth amendments to the United States Constitution.”
Oglesby v. State, 773 S.W.2d 443 (Ark. 1989). · cites it 2× “The appellants were charged with promoting obscene material in violation of Ark. Code Ann. § 5-68-303 (1987). Under Ark.”
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